Citation Nr: 0434452
Decision Date: 12/30/04 Archive Date: 01/05/05
DOCKET NO. 04-06 731 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUE
Entitlement to service connection for fibromyalgia.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. L. Wright, Counsel
INTRODUCTION
The veteran had active service from September 1977 to August
1981, and a period of active duty for training from June 17
to July 1, 2000.
This appeal arises from a May 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Boston, Massachusetts. In this decision, the RO denied
entitlement to service connection for fibromyalgia.
The veteran provided testimony at a hearing before a Veterans
Law Judge (VLJ) from the Board of Veterans' Appeals (Board)
sitting at the RO in September 2004. The VLJ that conducted
this hearing will make the final determination in this case.
See 38 U.S.C.A. §§ 7102(a), 7107(c) (West 2002).
FINDINGS OF FACT
1. Evidence sufficient for an equitable determination of the
issues decided below has been obtained.
2. The most probative medical evidence establishes that the
veteran's current fibromyalgia is not etiologically related
to his military service.
CONCLUSION OF LAW
The criteria for entitlement to service connection for a
fibromyalgia have not been met. 38 U.S.C.A. §§ 1110, 1131
(West 2002); 38 C.F.R. § 3.303 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub.L. No.
106-475, 114 Stat. 2096 (2000) introduced several fundamental
changes into the VA adjudication process. It eliminated the
requirement under the old 38 U.S.C.A. § 5107(a) (West 1991)
that a claimant must present a well-grounded claim before the
duty to assist is invoked.
A VCAA notice letter consistent with 38 U.S.C. § 5103(a) and
38 C.F.R. § 3.159(b) must (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim.
VA satisfied this duty by means of letters to the appellant
issued in December 2002 and September 2003. By means of
these letters, the appellant was told of the requirements to
establish service connection for fibromyalgia. He was
advised of his and VA's respective duties and asked to submit
information and/or evidence pertaining to the claim to the
RO. The appellant was apprised of the evidence considered by
VA and the applicable laws and regulations in the Statement
of the Case (SOC) issued in January 2004. The December 2002
notice was provided to the veteran prior to the initial
unfavorable agency of original jurisdiction (AOJ) decision
issued in March and May 2003. Based on these facts, the
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b)(1) have been met.
Assistance shall also include providing a medical examination
or obtaining a medical opinion when such an examination or
opinion is necessary to make a decision on the claim. 38
U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In the current
case, the veteran was provided with a VA compensation
examination in February 2003. This examination noted an
accurate medical history, detailed findings on examination,
and the appropriate diagnoses and opinions on etiology. The
examiner clearly indicated in his report that he had reviewed
the medical evidence in the veteran's claims file in
connection with this examination. Therefore, this
examination is adequate for VA purposes. See Wells v.
Principi, 326 F.3d 1381 (Fed. Cir. 2003), and Charles v.
Principi, 16 Vet. App. 370 (2002).
VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claims
for the benefit sought, unless no reasonable possibility
exists that such assistance would aid in substantiating the
claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d).
The RO requested the appellant to identify evidence pertinent
to his claim in multiple letters, to include the VCAA
notifications sent in December 2002 and September 2003. The
veteran identified in January 2003 and at his hearing in
September 2004, both military and private treatment. All
identified records pertinent to the issue decided below have
been obtained. As he has not provided any additional
evidence or identified any other relevant medical treatment,
further development of the medical evidence for the issue
decided below is not warranted.
The appellant requested a hearing before the Board and his
hearing was held in September 2004. The transcript of the
hearing testimony has been associated the claims file. In
addition, the veteran presented additional evidence at his
hearing, to include his diary entries and military records
had have previously been incorporated into the claims file.
He signed a waiver of AOJ consideration of this evidence at
the time of the hearing, and remand for AOJ review of this
evidence would be inappropriate. The Board concludes that
all pertinent evidence regarding the issue decided below has
been obtained and incorporated into the claims file.
Therefore, appellant review is appropriate at this time.
To the extent that VA in anyway has failed to fulfill any
duty to notify and assist the appellant, the Board finds that
error to be harmless. See Conway v. Principi, 353 F.3d 1369
(Fed. Cir. 2001) (The "harmless error doctrine" is
applicable when evaluating VA's compliance with the VCAA).
Of course, an error is not harmless when it "reasonably
affected the outcome of the case." ATD Corp. v. Lydall,
Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). As all available
medical evidence has been obtained regarding the issue
decided below, the Board finds that the duty to assist has
been fulfilled and any error in the duty to notify would in
no way change the outcome of the below decision. In this
regard, while perfection is an aspiration, the failure to
achieve it in the administrative process, as elsewhere in
life, does not, absent injury, require a repeat performance.
Miles v. M/V Mississippi Queen, 753 F.2d 1349, 1352 (5th Cir.
1985).
Based on the above analysis, the Board determines that no
reasonable possibility exists that further assistance would
aid in the substantiation of the appellant's claim.
38 U.S.C.A. 5103A. In addition, as the appellant has been
provided with the opportunity to present evidence and
arguments on his behalf and availed himself of those
opportunities, appellate review is appropriate at this time.
See Bernard v. Brown, 4 Vet. App. 384 (1993).
Service Connection for Fibromyalgia
The veteran contends his current fibromyalgia was incurred as
a result of tick bites sustained during active duty for
training in June 2000, or developed as a result of allergic
reactions to the medication to treat Lyme disease resulting
from the tick bites.
At his hearing in September 2004, the veteran testified that
during his annual training in 2000 he was bitten by seven
different ticks. It was claimed by the veteran that prior to
these bites he had been in good health. He noted that these
ticks tested positive for carrying Lyme disease and he was
initially treated for this disorder. Soon after the tick
bites, the veteran developed pain, stiffness, joint aches,
and swollen hands. He noted that he had been treated with
five different medications for his Lyme disease and had an
allergic reaction to two of these medications. In November
2000, he was first diagnosed with fibromyalgia, but claimed
similar symptoms had started soon after the tick bites. It
was acknowledged by the veteran that no physician had related
his current fibromyalgia to the tick bites or his medication.
The veteran submitted diary entries dated from mid-July 2000
to March 2001 noting his treatment for suspected Lyme disease
and fibromyalgia.
The veteran was given a comprehensive physical examination by
the military in December 1978. He reported a past medical
history of breaking his left elbow. On examination, his
extremities, spine, and musculoskeletal system were found to
be normal.
During his active military service, the veteran received the
following injuries: to the left thumb in August 1978; to the
left second digit in March 1979; the right fifth digit in
April and September 1979; the right thumb in April 1980; the
left leg, arm, and side in May 1980; the left foot in July
1980; the right knee in August 1980; the left hand and knee
in December 1980; and the right knee in October 1981. Most
of these injuries were related to the veteran's military work
as a vehicle mechanic and appear to be acute and transitory
in nature. There is no separation examination available for
review.
On a military medical history form dated in December 1999,
the veteran denied having any medical problems in the recent
past.
In June 2000, the veteran was ordered to active duty for
training (annual training). A military Statement of Medical
Examination (DA Form 2173) dated on June 24, 2000 indicates
that the veteran found a tick on his right chest.
A military outpatient record of late July 2000 noted that one
of the ticks that had bitten the veteran tested positive for
Lyme disease. The veteran reported that three days after the
bite he began to suffer with nausea, vomiting, and fatigue.
He denied any other symptom. The assessment was possible
Lyme disease.
In August 2000, a private outpatient record noted that three
weeks before the veteran had been treated for a tick bite
that had tested positive for borrelia. His initial
medication was switched when he developed gastrointestinal
distress. It was noted that he veteran had finished his
medication treatment the week before.
A private university medical center record of October 2000
noted the veteran's complaint that since a tick bite in June
2000 his whole body had been in "chaos." He reported that
testing of the bite had revealed the tick carried Lyme
disease. His symptoms after the bite included upset stomach,
decreased appetite, arthralgias, swollen hands, fatigue, and
headaches. The veteran was then treated with medication, but
developed "flu-like" symptoms. His medication was changed.
Subsequent blood testing for Lyme disease was negative. The
veteran's current symptoms included chills, decreased
appetite, fatigue, poor sleep, multiple joint pain, swollen
hands, diffuse achy feeling, muscle cramps, being moody, and
constipation. No diagnosis was given.
In February 2001, the veteran received a private rheumatology
consultation. It was noted that after the examination of
October 2000, the rheumatologist had made a diagnosis of
classic fibromyalgia syndrome. With the use of medication,
the veteran reported increased functional ability with some
residual discomfort.
A private outpatient record of April 2001 noted that the
veteran had been released back to the physician's care from
the university medical center rheumatologist. He denied any
achy joints or pain and it appeared the medication alleviated
his symptoms. The assessments included fibromyalgia.
Outpatient records in October 2001 and January 2002 noted
continuing assessments for fibromyalgia.
The veteran was given a private physical examination in July
2002. He reported increased symptoms regarding his
fibromyalgia and side effects from his medication. The
history noted that the veteran's symptoms began after a tick
bite in "1999", but it was uncertain whether he ever had
Lyme disease. The impressions included fibromyalgia with the
question of whether his current medication continued to work.
Private physical examination in December 2002 noted the
veteran's report of increased pain and difficulty sleeping.
His spouse reported that the veteran appeared to be in a
"brain fog." The impression was flaring fibromyalgia.
The veteran was afforded a VA compensation examination in
February 2003. The examination report noted a medical
history similar to that presented by the veteran and his
treatment records. The examiner reported that he had
reviewed the evidence in the veteran's VA claims file. Based
on this review, and after thorough examination, the diagnoses
included fibromyalgia and a history of Lyme disease. The
examiner noted that there was no evidence in the medical
records that the veteran had an active case of Lyme disease.
Diagnostic testing in connection with the VA examination was
negative for Lyme disease and was consistent with the
examiner's findings and opinion. The examiner also commented
that there was no known medical association between the
development of fibromyalgia after being infected with, and
treated for, Lyme disease.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).
If a condition noted during service is not shown to be
chronic, then generally a showing of continuity of symptoms
after service is required for service connection. 38 C.F.R.
§ 3.303(b). Service connection may also be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
However, "[a] determination of service connection requires a
finding of the existence of a current disability and a
determination of a relationship between that disability and
an injury or disease incurred in service." Watson v. Brown,
4 Vet. App. 309, 314 (1993).
In the alternative, the chronicity provisions of 38 C.F.R. §
3.303 are applicable where evidence, regardless of its date,
shows that a veteran had a chronic condition in service, or
during an applicable presumptive period, and still has such
condition. Such evidence must be medical unless it relates
to a condition as to which under case law of the Court, lay
observation is competent. See Espiritu v. Derwinski, 2 Vet.
App. 492 (1992).
Active military, naval, or air service includes active duty,
any period of active duty for training during which the
claimant was disabled or died from a disease or injury
incurred or aggravated in the line of duty, and any period of
inactive duty training during which the claimant was disabled
or died from an injury incurred or aggravated in the line of
duty. 38 U.S.C.A. §§ 101(24), 106(d); 38 C.F.R. §§ 3.6(a),
3.7(o)(1)(iv), (o)(2).
Active duty is full-time duty, other than active duty for
training, in the Armed Forces, and separation from active
duty, under conditions other than dishonorable, confers
veteran status. 38 U.S.C.A. § 101(21); 38 C.F.R. § 3.6(b).
Active duty for training (ACDUTRA, ADT or, in the services,
active duty training) is full-time duty for training purposes
performed by National Guardsmen pursuant to 32 U.S.C.A.
§§ 316, 502, 503, 504, or 505, and by Reservists.
38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Basically, this
refers to the fifteen days of annual training, sometimes
euphemistically referred to as "summer camp," that each
Reservist or National Guardsman must perform each year.
The service medical evidence indicates that the veteran
suffered a number of physical injuries during his active
military service, usually connected with this work as a
vehicle mechanic. He is currently service connected for the
residuals of a left hand injury that had resulted during
active military service. His other injuries appear to be
acute and transitory in nature. This is supported by the
fact that no medical evidence or opinion has attributed the
veteran's current musculoskeletal problems with any of these
in-service injuries (except, of course, for the left hand
injury). In fact, the veteran himself has maintained that he
did not suffer with any residual health problem prior to June
2000. Based on this medical and lay evidence, the Board
finds that the preponderance of the evidence is against any
finding of service connection for fibromyalgia with the
veteran's period of active service.
Turning to the veteran's contention that his current
fibromyalgia is etiologically related to his injury from tick
bites in June 2000 while on active duty to training, the
Board acknowledges that the veteran's fibromyalgia
symptomatology began soon after this training period. His
first symptoms were documented in mid-July 2000. However,
the diagnostic testing ruled out the existence of Lyme
disease as early as October 2000, and these symptoms have
been attributed to fibromyalgia. None of his treating
physicians have provided any opinion linking the fibromyalgia
with his tick bites, Lyme disease, or allergic reaction to
medication treating the presumed Lyme disease. It appears
that since the rheumatologist's diagnosis in October 2000,
his symptoms have consistently been attributed solely to
fibromyalgia.
The veteran has expressed his lay opinion that his current
fibromyalgia was either caused by his June 2000 tick bites or
due to allergic reaction to his medication to treat Lyme
disease. While the veteran, as a layperson, is competent to
provide evidence regarding injury and symptomatology, he is
not competent to provide evidence regarding diagnosis or
etiology. Espiritu at 494. Only a medical professional can
provide evidence of a diagnosis or etiology of a disease or
disorder. Further the Board cannot rely on its own
unsubstantiated medical opinion, but instead must make legal
determinations on the basis of competent medical evidence and
opinion. See Colvin v. Derwinski, 1 Vet. App. 174, 175
(1991).
The only medical opinion of record discussing the etiology of
the current fibromyalgia is the VA examiner's opinion of
February 2003. Based on a thorough examination and review of
the treatment records, this examiner clearly ruled out any
known nexus between the veteran's fibromyalgia and his tick
bites or treatment for Lyme disease.
It is the Board's determination that the preponderance of the
evidence is against a grant of entitlement to service
connection for fibromyalgia. See 38 U.S.C.A. § 5107(b); see
also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the
veteran has provided lay evidence regarding the existence of
a current disability and its relationship to his military
service, this evidence is not competent to establish the
required medical diagnosis and nexus opinion. The Board
finds that the examination reports prepared by competent
medical professionals are more probative of the existence and
etiology of a disorder or disability.
(Continued on next page.)
ORDER
Entitlement to service connection for fibromyalgia is denied.
____________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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